Forfeited Claim That Government Breached Plea Agreement Is Reviewed for Plain Error; Third Prong Requires Showing That Breach Affected Sentence

The question presented: "whether a forteited claim that the Government has violated the terms of a plea agreement is subject to the plain-error standard of review set forth in Rule 52(b) of the Federal Rules of Criminal Procedure."

The answer (per Justice Scalia for a seven-vote majority): yes.

Some facts: Puckett was charged with armed bank robbery and a 924(c) count. He reached an agreement with the Government to plead guilty to both counts. The Government agreed that Puckett qualified for all three acceptance points, and also to recommend the low end of the advisory range. The Government moved for the third level before rearraignment. "Because of delays due to health problems experienced by Puckett, sentencing did not take place for almost three years" after rearraignment. In the meantime, Puckett helped another man defraud the Postal Service. After confessing that tidbit to his probation officer, the PO revised the PSR and recommended denial of acceptance. When the case finally got to sentencing, the Government opposed acceptance, remarking that its third-level motion was filed "a long time ago." The district court denied acceptance on the ground that one who commits another crime while awaiting sentence rarely gets acceptance. But the judge followed the Government's recommendation for a low-end sentence, which was 262 months on the robbery count plus 84 months on the gun count. With acceptance, the low end of the robbery count would have been 188 months.

Importantly, at no time during the exchange did Puckett’s counsel object that the Government was violating its obligations under the plea agreement by backing away from its request for the reduction. He never cited the relevant provision of the plea agreement. And he did not move to withdraw Puckett’s plea on grounds that the Government had broken its sentencing promises.

Puckett appealed, arguing that the Government breached the plea agreement. The Government, for some reason, conceded the breach, but argued that Puckett forfeited his claim by not raising it in the district court. The court of appeals agreed with the Government, and reviewed for plain error. It held there was error that was plain, but that Puckett failed to show the error affected his substantial rights in light of the district court's comment that acceptance is rarely given when a defendant continues to commit crimes.

The Supreme Court granted cert to resolve a circuit split. And, as you know by now, held that a forfeited claim that the Government breached a plea agreement is reviewed for plain error. Why? Because there's nothing about that issue that justifies disregarding the general rule requiring contemporaneous objections and reviewing forfeited claims for plain error. The Court also:

Declined once again to decide whether a structural error automatically satisfies the third prong of plain error review, "because breach of a plea deal is not a 'structural' error[.]"

Also declined to decide whether the automatic-reversal rule of Santobello v. New York---which applies when "the Government's breach of a plea agreement has been preserved"---survives more "recent elaboration of harmless-error principles in cases such as Fulminante and Neder."

Explained that, on the third plain-error prong, "[w]hen the rights acquired by the defendant relate to sentencing, the 'outcome' he must show to have been affected is his sentence."

Further explained that "[t]he fourth prong is meant to be applied on a case-specific and fact-intensive basis[,] . . . emphasiz[ing] that a 'per se approach to plain error review is flawed.'"

Justice Souter dissented, joined by Justice Stevens:

I agree with the majority that plain error is the proper test, but depart from the Court’s holding that the effect in question is length of incarceration for the offense charged (as to which the error here probably made no ultimate difference). I would hold that the relevant effect is conviction in the absence of trial or compliance with the terms of the plea agreement dispensing with the Government’s obligation to prove its case.

Under that view, "a defendant's substantial rights have been violated whenever the Government breaches a plea agreement, unless the defendant got just what he bargained for anyway from the sentencing court." And the fourth prong would always be satisfied too, as "the fairness and integrity of the Judicial Branch suffer when a court imprisons a defendant after he pleaded guilty in reliance on a plea agreement, only to have the Government repudiate the obligation it agreed upon." That view did not carry the day.

In 1998, Willis was convicted of two counts of being a felon in possession of a firearm. "The two counts were premised on Willis’s simultaneous possession of two firearms and were, therefore, multiplicitous in violation of the Fifth Amendment’s prohibition against double jeopardy." Unfortunately, Willis never objected to the indictment, and he did not raise the issue on direct appeal or in two subsequent § 2255 petitions.

After serving his sentences on the two counts---which ran concurrently---Willis commenced serving two concurrent terms of supervised release. He violated, and was revoked. Willis raised the multiplicity argument at the revocation hearing, asking that a sentence be imposed for just one of the revoked terms. The district court rejected Willis's argument, and sentenced him to two consecutive 24-month terms of imprisonment.

Willis appealed. He did not challenge the underlying convictions or sentences; as the court points out, "[i]t is by now well-established that a defendant may not use the appeal of a revocation of supervised release to challenge an underlying conviction or original sentence." Instead, Willis argued that the second of the two revocation sentences was unreasonable because it was multiplicitious.

The court held that the second sentence was plainly unreasonable (and, for that reason, declined for at least the second time "to decide whether to subject revocation sentences to the 'unreasonable' or the 'plainly unreasonable' standard of review"):

There is no question but that the second revocation sentence is multiplicitous in its own right. We do not hold, however, that the second revocation sentence is not a legal sentence. That revocation sentence stems from one of the two original sentences; that original sentence, which Willis has already served, remains undisturbed and therefore legal. If the original sentence is legal, then the revocation sentence, which depends upon it, is also legal. Our opinion does not question the revocation sentence’s legality.

We question instead the mere fact of the second revocation sentence, which would require that Willis serve two revocation sentences, consecutively, as a penalty for what all parties now agree was only one offense. The second revocation sentence would therefore have the practical effect of incarcerating Willis for an additional twenty-four months. We especially note that the original sentence, including the term of supervised release, was imposed to run concurrently. The fact of its multiplicity, although legal, is, under all circumstances present, plainly unreasonable.

Intriguingly, the court goes on to not only emphasize the narrowness of its holding, but also to "limit the precedential value of our holding to cases presenting indistinguishable facts in all material respects." Which of course prompts two questions: 1) Can a panel (or even the court sitting en banc, for that matter) do that? 2) Given the narrowness of the holding, is such a purported limit even necessary?

17 Year-Old not a "Minor" for Purposes of Generic "Sexual Abuse of a Minor" & How Specific Must COV Objection Be to Avoid Plain Error Review?

Recall that in United States v. Lopez-DeLeon the Fifth Circuit held that California's statutory rape provision---which sets the age of consent at eighteeen---is broader than generic "statutory rape," an enumerated COV for purposes of guideline §2L1.2's 16-level enhancement. Why? Because 33 states, the District of Columbia, the U.S. Code, and the Model Penal Code set the age of consent at sixteen.

Okay, change the facts a little bit. This time the prior offense is oral copulation of a minor, in violation of Cal. Penal Code § 288a(b)(1). Like California statutory rape, it also criminalizes certain sexual acts with anyone under age eighteen. Is it "sexual abuse of a minor," also one of §2L1.2's enumerated COV's?

Munoz-Ortenza holds that § 288a(b)(1) is broader than generic sexual abuse of a minor. As in Lopez-DeLeon, the court canvasses state and federal statutes to come up with a generic definition of "minor." It finds that only six states plus D.C. define a minor as a person under eighteen when it comes to criminalizing oral copulation. A large majority require the minor to be under age sixteen, with a handful of others saying "under seventeen." Because the California statute includes some conduct---oral copulation with a seventeen-year-old---that would not be illegal under the majority view, it is broader than generic sexual abuse of a minor and not categorically a COV.

So what about a person with a prior conviction for such an offense in a state that defines a "minor" as a person under age seventeen? Most states require the minor to be under age sixteen, so that offense wouldn't be generic sexual abuse of a minor would it? Sayeth Munoz-Ortenza:

Elsewhere we have held that “minor” in this context includes those under seventeen. See United States v. Ayala, 542 F.3d 494, 495 (5th Cir. 2008), cert. denied, 2009 WL 166492 (U.S. Feb. 23, 2009); Najera-Najera, 519 F.3d at 511; United States v. Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir. 2000). We need not decide here whether “minor” as used in the enumerated category of “sexual abuse of a minor” means those under sixteen versus those under seventeen. We can say that “minor” in this context does not include all persons under eighteen—namely, seventeen-year olds. We are mindful that in many contexts a minor is defined as a person under eighteen. See Black’s Law Dictionary 997 (6th ed. 1990) (“In most states, a person is no long a minor after reaching the age of 18 . . . .”). However, in the unique crime-of-violence context, we must follow the Taylor common-sense approach.

Of course, under the Taylor approach, a sixteen-year-old is not a "minor." But that's not the way the court saw things in Ayala or Najera-Najera. As you can see, there's some inconsistency in this line of cases.

Another thing worth mentioning: error preservation. Munoz objected to the 16-level COV enhancement in the district court, but the court of appeals applied plain error review. Why? In the district court, Munoz "argued that the California statute improperly criminalizes consensual conduct." He didn't make the age-related argument until he got to the court of appeals. Consequently, plain error review. (It worked out in the end, because the court found application of the 16-level enhancement to be plain error.)

The Supreme Court has expressed an interest “that Congress be able to legislate against a background of clear interpretive rules, so that it may know the effect of the language it adopts.” This report identifies and describes some of the more important rules and conventions of interpretation that the Court applies. Although this report focuses primarily on the Court’s methodology in construing statutory text, the Court’s approach to reliance on legislative history are also briefly described.

The report is primarily geared towards those drafting legislation. (And if there were any doubt of where the author's allegiance lies, consider this snarky commentary from elsewhere in the summary: "Not infrequently the Court stacks the deck, and subordinates the general, linguistic canons of statutory construction, as well as other interpretive principles, to overriding presumptions that favor particular substantive results.") Nonetheless, the report looks like it can also serve as a helpful overview for those of you tangling with thory statutory interpretation issues.

Friday, March 13, 2009

The Pennsylvania statute concerning "terroristic threats" criminalizes a variety of vexatious acts, including threats to commit a "crime of violence." Although Pennsylvania law isn't entirely clear on what constitutes a "crime of violence," the term includes arson. And arson, as defined in Pennsylvania, doesn't necessarily require the use, attempted use, or threatened use of physical force against another person. Therefore, holds Ortiz-Gomez, a Pennsylvania conviction for threatening to commit an unspecified "crime of violence" does not constitute a COV under the force-element prong of guideline §2L1.2's 16-level COV definition.

Note that the result may be different if the Pennsylvania charging instrument alleges a particular state COV and that COV includes a physical-force-against-a-person element.

Tuesday, March 03, 2009

A solid majority of U.S. jurisdictions, as well as the Model Penal Code, define aggravated assault to require a mens rea of intent, knowledge, or some form of heightened recklessness (such as recklessness under circumstances manifesting extreme indifference to the value of human life). "Simple" recklessness won't do. Nevertheless, in United States v. Mungia-Portillo, the Fifth Circuit held that generic "aggravated assault," for purposes of guideline §2L1.2's 16-level COV enhancement, requires a minimum mens rea of just simple recklessness. Eschewing the traditional Taylor/Shepard categorical approach in favor of an ill-defined "common-sense approach," Mungia-Portillo concluded that any difference between "simple" recklessness and "heightened" recklessness is minor enough not to matter. In so holding, Mungia-Portillo "decline[d] to exhaustively survey all state codes[,]" instead relying on the Model Penal Code, LaFave, and Black's law dictionary.

Turns out there are now two circuit splits involving this issue. The Ninth Circuit has previously criticized---and refused to follow---the Fifth Circuit's "common-sense" departure from Taylor/Shepard. And just last week, in United States v. Esparza-Herrera,* it disagreed with Mungia-Portillo's other holdings. Expanding the inquiry beyond secondary sources to include a survey of actual aggravated assault statutes across the country, Esparza-Herrera concluded both that 1) a solid majority of U.S. jurisdictions "require, at a minimum, a heightened form of recklessness to sustain an aggravated assault conviction[,]" and 2) "ordinary recklessness is a broader mens rea requirement for aggravated assault than is 'recklessness under circumstances manifesting extreme indifference to human life.'" (For those of y'all keeping track, the aggravated assault statute underlying Esparza's prior conviction was Arizona Revised Statute § 13-1204(A)(11).)

Intriguingly, all three judges on the panel joined an opinion concurring in the per curiam, and pining for the Fifth Circuit's approach!

[I]n this esoteric sphere of legal analysis our circuit precedent in substance says that common sense is out and instead we must canvass and assess what the majority of jurisdictions have concluded. I might disagree with the conclusion of the Fifth Circuit in Mungia-Portillo to the extent it suggests that there is no relevant difference between extreme indifference and ordinary recklessness, but I don’t think that such a difference should be very important in assessing whether there has been an aggravated assault. I would prefer to use the Fifth Circuit’s “common sense” approach, rather than trying to assess the standard jurisdiction by jurisdiction. What is important to me is whether the Arizona statute to which Esparza-Herrera pled guilty shows an offense sufficiently serious that we should consider it a “crime of violence” warranting a higher sentence under the advisory Guidelines in the interest of protecting the community. Using a common sense approach, I would have no problem concluding that Esparza-Herrera’s guilty plea . . . yielded a prior conviction of a crime of violence for purposes of calculating the range of the advisory Sentencing Guidelines, even if supported only by the recklessness required under the statute to which he pled guilty.

As Steve Kalar observes in his analysis of Esparza-Herrera at the Ninth Circuit Blog, the concurrence "seems to be gunning for en banc or Supreme Court review of the Ninth’s rule."

Does the Sixth Amendment's guarantee of effective assistance of counsel require a criminal defense attorney to advise a client who is not a citizen that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation?

If a criminal defense attorney misadvises his noncitizen client that a guilty plea will not lead to deportation, and that misadvice induces a guilty plea, can that misadvice amount to ineffective assistance of counsel and warrant setting aside the guilty plea?

Santos-Sanchez presented a procedural scenario you don't see every day: an appeal from the denial of a petition for a writ of coram nobis. Santos, a legal resident alien, pleaded guilty to aiding and abetting the illegal entry of an alien, in violation of 8 U.S.C. § 1325 and 18 U.S.C. § 2(a) (known colloquially as misdemeanor alien smuggling). As a result, DHS sought to remove Santos from the United States. While the removal proceedings were still ongoing, Santos filed his petition for a writ of error coram nobis, seeking vacation of his conviction. The petition was ultimately denied, and Santos appealed.

Santos presented three arguments, all of which the court of appeals rejected. First, "he argue[d] that his defense counsel rendered ineffective assistance by affirmatively misrepresenting the immigration consequences of his guilty plea." Specifically, Santos claimed that he was misled into believing that removal was only a possibility---rather than a certainty---because 1) one of his attorneys advised him that deportation is a possible consequence of a guilty plea to a criminal charge, and for that reason that he may want to consult an immigration lawyer, and 2) his other attorney gave him an immigration lawyer's business card "and suggested that Santos-Sanchez call the lawyer if he had any problems with immigration." The court held that the attorneys' advice was not objectively unreasonable under the Strickland standard, given the circumstances: neither attorney claimed to be an expert in immigration law, they did not answer any questions concerning deportation, and "[w]hile [the] statement that deportation was 'possible' might indicate that deportation was not a certainty, it is not so inherently misleading in this context that it constitutes an affirmative misrepresentation of the law."

Second, Santos argued, in the alternative, that his attorneys were ineffective "due to [their] failure to warn him of the immigration consequences of a guilty plea." That ran smack into the Fifth Circuit's prior decision in United States v. Banda, which held that "counsel’s failure to inform a defendant of the collateral consequences of a guilty plea"---and deportation is a collateral consequence---"is never deficient performance under Strickland." Santos tried to get around Banda by arguing that certain deportation---as opposed to the mere possibility of deportation---is a direct consequence of a guilty plea, not a collateral consequence, particularly after IIRIRA. The court disagreed, observing that "[t]he likelihood that a defendant would be deported was irrelevant to" Banda's holding. As for IIRIRA, the court

agree[d] with the First and Tenth Circuits that the changes wrought by IIRIRA have not so altered the nature of deportation as to wholly undermine our holding in Banda. We, like our sister circuits, have drawn a bright line between the direct and collateral consequences of a guilty plea and require that counsel advise a defendant of only the former. And also like our sister circuits, we have limited the direct consequences of a guilty plea to “the immediate and automatic consequences of that plea such as the maximum sentence length or fine.” Under Banda, regardless of certainty, deportation is a collateral consequence of a guilty plea. Consequently, Santos-Sanchez’s counsel was not required to inform him of the immigration consequences of his guilty plea for counsel’s assistance to be effective.

(internal cite removed).

Santos's third argument---as well as the court's rejection of it---mirrored the second one:

Santos argued that his guilty plea was ineffective because the magistrate judge failed to advise him of the immigration consequences of his guilty plea.

The Fifth Circuit has "previously held that neither due process nor Federal Rule of Criminal Procedure 11 require that a court advise a defendant of the collateral consequences of a guilty plea[,]" and deportation is one such collateral consequence.

Santos said things are different after IIRIRA.

The court agreed with other circuits that have held that the post-IIRIRA certainty of deportation doesn't make it a direct consequence of a conviction, meaning it's still a collateral consequence, meaning a court need not admonish a defendant of the immigration consequences of a guilty plea.

(One last thing from Santos-Sanchez for all of you procedure wonks out there: the case holds that magistrate judges lack statutory jurisdiction to hear a petition for writ of coram nobis. Read the opinion if you want to know why.)